Free Speech Considerations
for Local Governments
Introduction
The First Amendment to the U.S. Constitution grants
Americans the right to free speech, 1 a right that permeates
American society. The right protects speech that we hate,
speech that scares us, but many Americans, blessed with
this freedom, never stop to think about how it operates.
Although Americans enjoy enormous freedom to voice
dissenting, contrarian and controversial viewpoints, the
First Amendment is not carte blanche to say or do anything at any time. For instance, when thinking about the
First Amendment, one might ask why it is legal to burn a
flag2 but not a draft card?3 The First Amendment’s grant
of free speech is filled with nearly 300 years of history and
nuance. And each year that technology advances and new
avenues of communication open, that nuance grows and
expands and creates new uncertainties.
This article is a guide to that nuance, an explanation
of the First Amendment’s freedom of speech as applied
to local governments. Local government officials should
be concerned with a number of free speech issues and
should have some familiarity with how courts analyze
those issues. Analysis of government regulation of free
speech generally begins with a classification of the type
of speech, whether private speech or government speech,
followed by the location of the speech, whether a public
forum, a limited public forum, or a non-public forum.
Similarly, that is where this article will begin. The difference between government speech and private speech will
be outlined. Then, each type of forum will be explained
with a focus on how each forum is created and any unique
characteristics of that forum. Following the explanation
of that construct, and for the practical use of localities,
this article will discuss how the forum analysis applies in
particular situations, both the areas settled by current judicial precedent and hypothetical situations that courts may
address in the future.
1
2
3
U.S. Const. amend. 1.
See Texas v. Johnson, 491 U.S. 397, 397 (1989).
See United States v. O’Brien, 391 U.S. 367, 272 (1968).
Government Speech
versus Private Speech
When discussing whether speech, or the regulation
of speech, is constitutional, the first step is to classify the
speaker. There are three kinds of speakers – governments,
individuals and corporations – the first two of which are
important for our purposes. A government’s right to speak
and a government’s right to regulate speech is an important distinction to understand. The First Amendment
– though explicitly a grant to private parties – operates
in practice to control how governments regulate private
speech, it does not regulate government speech.4
The U.S. Supreme Court has recognized that a government “has the right to ‘speak for itself.’ ”5 It may “say
what it wishes,”6 and more importantly, may “select the
views it wants to express.”7 Moreover, governments may
use, even compel, private financial assistance to convey a
government endorsed message.8 This freedom, though
substantial, is not unlimited. Governments are limited
by, among other things, the Establishment Clause, other
laws and regulations and the electorate at the ballot box.9
Therefore, the distinction between what governments may
say – or compel private parties to financially support – and
private speech is important. The former is not subject to
First Amendment scrutiny, so the forum is irrelevant. The
latter, however, is subject to First Amendment regulation by
governments and the legality of that regulation, if not viewpoint based, is almost entirely dependent on the forum.
Public Forum Analysis
The first step in the analysis of free speech regulation is
to identify the relevant forum. Courts generally define the
forum narrowly. Courts identify the requested avenue of
communication; if a party is seeking limited access, then
4
5
6
7
8
9
Page 1
Johanns v. Livestock Marketing Assn., 544 U.S. 550, 553
(2005).
Pleasant Grove City, Utah v. Summum, 129 S.Ct. 1125, 1131
(2009) (quoting Board of Regents of Univ. of Wis. System v.
Southworth, 529 U.S. 217, 229 (2000)).
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S.
819, 833 (1995).
Pleasant Grove City, 129 S.Ct. at 1131.
Id.
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courts will define the forum narrowly.10 For instance, when
the communication sought was advertising space on local
buses, the U.S. Supreme Court identified the relevant forum
as the advertising space and not the buses themselves.11
Similarly, the D.C. Circuit Court of Appeals, in a case
involving advertising in a military publication, defined the
relevant forum as the advertising section and not the entire
publication.12 Thus, even though a larger forum may be a
traditional public or designated public forum, the actual access sought may be a distinct, smaller forum, encompassed
by the larger forum and may individually be nonpublic.
The power of local governments to regulate speech
is at its lowest ebb when the speech is in a public forum.
There are two types of public forums, traditional public
forums and designated, or limited, public forums. In the
words of the U.S. Supreme Court, traditional public forums are those that “have immemorially been held in trust
for the use of the public and, time out of mind, have been
used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions.”13
Public streets and parks are the quintessential example. A
designated public forum, on the other hand, is government
property that, although not a traditional public forum, the
government has specifically opened for open communication and free expression of ideas.14 Governments may
impose reasonable time, place and manner restrictions on
expression in any public forum.15 Any restriction on the
content of speech, however, is subject to strict scrutiny and
must be narrowly tailored to achieve a compelling governmental interest.16 Lastly, viewpoint restrictions are strictly
prohibited.17
If a local government wants to create a forum for
individuals to voice concerns but does not want to create unfettered access, then the government may create a
limited public forum. In limited public forums, an individual may not engage in every type of speech;18 indeed,
10 Bryant v. Gates, 532 F.3d 888, 895 (2008); see also Perry Educ.
Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37, 46-47
(1982); Lehman v. City of Shaker Heights, 418 U.S. 298, 30004 (1974) (plurality opinion).
11 Lehman, 418 U.S. at 300-04.
12 Bryant, 532 F.3d at 895.
13 Hague v. Committee for Industrial Organization, 307 U.S. 496,
515 (1939) (Opinion, Roberts, J.); see also Pleasant Grove, 129 S.
Ct. at 1132, Perry Ed. Assn. v. Perry Local Educators’ Assn.,
460 U.S. 37, 45 (1983).
14 Pleasant Grove, 129 S. Ct. at 1132.
15 Id.
16 Id.
17 Id.; Carey v. Brown, 447 U.S. 455, 463 (1980).
18 Good News Club v. Milford Central School, 533 U.S. 98, 106
(2001).
the government “may be justified ‘in reserving [its forum]
for certain groups or for the discussion of certain topics.”19
But again, governments do not have unfettered discretion.
They cannot discriminate against different viewpoints and
“any restriction must be ‘reasonable in light of the purpose served by the forum.’ ”20 For instance, discussion at
city council meetings may be limited to speech germane to
the issue at hand.21
If specific government property is not a traditional
public forum, designated – or limited – public forum,
then that property is a nonpublic forum. The power of
local governments to regulate speech is at its highest in
nonpublic forums. A government can restrict speech “as
long as the restrictions are reasonable and [are] not an effort to suppress expression merely because public officials
oppose the speaker’s view.”22 Governmental intent is the
determining factor in whether a forum is public or not.23
Indeed, “[t]he government does not create a designated
public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional
public forum for public discourse.”24 The court will
examine both the government’s stated purpose and the
government’s objective treatment of the forum, including
“the nature of the property, its compatibility with expressive activity, and the consistent policy and practice of the
government.”25
Practical Guidance for Localities
With the analysis of forums outlined, this article will
shift to an examination of how courts apply these principles. The following examination will include outdoor
public spaces, public buildings, public debates, public
transportation, internet, and advertisements generally. As
noted above, there are areas in free speech, public forum
jurisprudence that are unsettled, particularly regarding the
internet; the following will identify those areas and discuss
competing arguments.
19 Id. (quoting Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U.S. 819, 829 (1995)).
20 Id. (quoting Cornelius v. NAACP Legal Defense & Ed. Fund,
Inc., 473 U.S. 788, 806 (1985)).
21 See infra Public Debates section.
22 Cornelius, 473 U.S. at 800.
23 Bryant v. Gates, 532 F.3d 888, 895 (2008).
24 Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677
(1998).
25 Stewart v. D.C. Armory Bd., 863 F.2d 1013, 1016-17 (D.C. Cir.
1988).
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Outdoor Public Spaces
Outdoor public spaces include more than just public
parks and streets, but the treatment that courts give public
parks and streets is a good starting point. As a general
matter, public parks and streets are traditional public
forums.26 Therefore, it is difficult for local governments to
regulate much speech that occurs in most public parks and
on most public streets. However, there are a number of
well established caveats to that general rule. First, the U.S.
Supreme Court has upheld an ordinance prohibiting the
posting of political material on public property.27 More
recently, the U.S. Supreme Court upheld a locality’s refusal
to display a monument in a public park.28 In Pleasant
Grove v. Summum, the City of Pleasant Grove in Utah
rejected a religious organization’s offer to erect a religious
monument in a public park.29 Notably, the park already
had a monument containing the Ten Commandments30
and at least 11 permanent displays donated by private
parties.31 The city denied construction of the requested
monument based on a practice “to limit monuments in the
Park to those that ‘either (1) directly relate to the history of
Pleasant Grove, or (2) were donated by groups with longstanding ties to the Pleasant Grove community.’ ”32 While
the Tenth Circuit Court of Appeals found that the City of
Pleasant Grove could not reject the offered monument absent a compelling justification and a narrow tailoring, the
U.S. Supreme Court disagreed.33 The Court classified the
permanent monuments on public property as government
speech, regardless of whether the idea or even the funding
was private.34 Because the Court found that government
speech was involved, it did not conduct the forum analysis
and upheld the city’s decision.35
The general public forum categorization of streets
and sidewalks is a little misleading, as governments may
regulate a number of speech related activities on streets
and sidewalks. For starters, localities may impose certain
licensing requirements, including fees, when groups hold
events on public property.36 Courts, however, strongly
26 Perry Ed. Assn., 460 U.S. at 45.
27 Members of the City Council of the City of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 790-91 (1984).
28 Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125 (2009).
29 Id. at 1129-30.
30 Id.
31 Id. at 1129.
32 Id. at 1130.
33 Id.
34 Id. at 1132-34.
35 See id. at 1132 (discussing the parameters of the forum analysis
but not applying it to the facts of the case).
36 Cox v. New Hampshire, 312 U.S. 569, 577 (1941).
disfavor regulations or permit schemes that allow governmental actors to exercise broad discretion.37 The U.S.
Supreme Court does not want governmental actors making arbitrary decisions on who is able to speak.38 Although
governments otherwise have quite a bit of latitude with
permit schemes, the Court applies a heavy presumption
of invalidity on any prior restraint39 on the content of
the speech.40 Any such restriction faces a presumption
of unconstitutionality. 41 One of the broader powers that
localities may exercise is the ability to issue regulations that
prohibit people or groups from blocking sidewalks from
the free flow of pedestrians.42 Courts, however, will closely
scrutinize such regulations and may still protect activity
closely related to the speech at issue.43 However, a regulation that controls the time, place, and manner of speech
is fine if it is: (1) content neutral; (2) narrowly tailored and
serves a significant government interest; and (3) adequate
alternative channels are left open for communication.44
In addition to the above exceptions, the U.S. Supreme
Court has held that a sidewalk in front of a post office,
segregated by a parking lot from the sidewalk abutting
the street, is not a public forum.45 Notably, the sidewalk
in question was solely for individuals with postal business
and was not a general public passageway.46 Similarly, the
Supreme Court has held that sidewalks on military bases
are not public forums.47 Additionally, localities may impose reasonable time, place and manner restrictions on the
37 Forsyth County, Ga. V. Nationalist Movement, 505 U.S. 123,
130 (1992).
38 Id.
39 A prior restraint is any governmental restriction on the content
of speech prior to the publication of the speech at issue.
40 Thomas v. Chi. Park Dist., 534 U.S. 316, 320-21 (2002).
41 See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (citing cases).
42 International Caucus of Labor Committees v. City of
Montgomery, 111 F.3d 1548 (11th Cir. 1997) (regulation
prohibiting tables on sidewalks was reasonable time, place,
and manner restriction on pamphleteering)
43 One World One Family Now v. City of Key West, 852 F.
Supp. 1005 (S.D. Fla. 1994) (group’s portable tables were afforded First Amendment protection because of their limited
use in facilitating the sale of expressive t-shirts, while chairs,
umbrellas, and boxes were not protected because they were
not sufficiently related to the expressive message and constituted “permanent-type” structures)
44 Forsyth County, 505 U.S. at 130; Ward v. Rock Against Racism,
401 U.S. 781, 791 (1989); see also Citizens for Peace in Space
v. City of Colorado Springs, 477 F.3d 1212 (2007) (upholding
a time, place, and manner restriction on all speech within a
designated security zone).
45 U.S. v. Kokinda, 497 U.S. 720, 720 (1990).
46 Id.
47 Greer v. Spock, 424 U.S. 828, 838 (1976).
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picketing of individual residences.48 Furthermore, courts
have upheld reasonable notice and disclosure requirements
when dealing with picketers on public streets, sidewalks,
and parks.49 Localities may not, however, enact ordinances that act as blanket prohibitions on door-to-door
solicitations,50 nor may localities require notice – even just
for identification purposes – of door-to-door solicitations,51
or prohibit the distribution of literature on sidewalks.52
Buffer Zones
One very interesting and timely53 aspect of free speech
regulation is a locality’s ability to regulate the time, place
and manner of protests. One of the most recent circuit
court cases to address this issue is Brown v. City of Pittsburgh.54 The issue in Brown revolved around an ordinance enacted by the City of Pittsburgh.55 The ordinance
created a “fifteen-foot ‘buffer zone’ and one hundredfoot ‘bubble zone’ around hospitals, medical offices, and
clinics.”56 The plaintiff, who engaged in “sidewalk counseling” and leafleting, sued the city claiming that the ordinance violated her First Amendment rights of free speech.
The interesting twist in Brown was that the ordinance at
issue combined two kinds of zones around hospitals, both
of which the U.S. Supreme Court previously considered
and upheld.
Public Buildings
Unlike public parks, sidewalks and streets, public
buildings are not traditional public forums. Therefore,
as a general matter, buildings only become public forums
when localities intentionally open the building to expressive conduct – typically creating a limited public forum.
Again, unlike with designated public forums or traditional
public forums, localities can control access to limited public forums, to some extent. For example, a court upheld
an ordinance making library meeting rooms generally
available, except for worship services.68 Additionally, the
U.S. Supreme Court has upheld a public school’s decision
to open its rooms for “social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community,” as a limited public
forum.69 But if a governmental entity is not careful, it may
create a designated public forum and then only be able to
The Court considered bubble zones57 in Hill v. Colorado.58 In fact, the bubble zone at issue in Hill was exactly
the same as that in Brown.59 The Hill Court held that
48 Frisby v. Schultz, 487 U.S. 474 (1988). But see Carey v. Brown,
447 U.S. 455 (1980) (Supreme Court invalidated Illinois residential picketing statute because peaceful labor picketing was
exempted).
49 Green v. City of Raleigh, 523 F.3d 293 (4th Cir.2008).
50 Martin v. City of Struthers, Ohio, 319 U.S. 141 (1943).
51 Hynes v. Mayor and Council of Borough of Oradell, 425 U.S.
610 (1976).
52 Schneider v. State of New Jersey, Town of Irvington, 308 U.S.
107 (1939).
53 The U.S. Supreme Court heard Snyder v. Phelps in October
54
55
56
57
2010, the issue in the case was whether a family member of
a deceased service member could sue funeral picketers for
tort damages, including intentional infliction of emotional
distress. Ian Shapira, Westboro Baptist Church, Phelps family
speak out about funeral-protest case, Wash. Post, Oct. 6, 2010,
available at http://www.washingtonpost.com/wp-dyn/
content/article/2010/10/06/AR2010100602605.html.
the Colorado statute in question was content neutral – it
did not discriminate between speaker’s viewpoints – and
sufficiently tailored to the government’s legitimate objectives because the barrier was only eight feet.60 Thus, the
Third Circuit held the bubble zone in Brown, by itself, was
facially valid.61 When considering the fifteen foot buffer
zone, the Third Circuit also relied on U.S. Supreme Court
precedent, specifically Schenck v. Pro-Choice Network
of W.N.Y.62 and Madsen v. Women’s Health Ctr., Inc.,63
where the Supreme Court upheld buffer zones of fifteen
and thirty-six feet, respectively.64 Because the buffer zone
in Brown was only fifteen feet (like the one in Schenck), it
was facially valid when considered by itself.65 The court,
however, found both the buffer zone and the bubble zone,
when considered together, not sufficiently tailored to the
government’s interest.66 The important point to take from
Brown is that the “layering of two prophylactic measures
is ‘substantially broader than necessary to achieve’ ” the
government’s interest.67 However, with a legitimate governmental interest at stake, like the free flow of pedestrian
traffic to clinics, localities may adopt either a bubble zone
or a buffer zone ordinance.
586 F.3d 263 (3rd Cir. 2009).
Id. at 266.
Id.
A bubble zone is one in which individual solicitors or protestors
are not allowed to approach within so many feet of individuals
unless such individuals express an interest in being approached.
58 530 U.S. 703 (2000).
59 Brown, 586 F.3d at 271.
60
61
62
63
64
65
66
67
68
Hill, 530 U.S. at 726-29.
Brown, 586 F.3d at 273.
519 U.S. 357 (2009).
512 U.S. 753 (1994).
Brown, 586 F.3d at 276.
Id.
Id. at 282.
Id. at 279 (quoting Ward, 491 U.S. at 800).
Faith Center Church Evangelistic Ministries v. Glover, 480 F.3d
891, 908 (2006).
69 Good News Club v. Milford Central School, 533 U.S. 98, 102
(2001).
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exclude speech when there is a compelling state interest.
For example, the Ninth Circuit Court of Appeals ruled
that if a city hall opened to artwork, but limited acceptance to only those that are not “controversial,” it created
a designated public forum.70 Similarly, a senior center
opened for “discussive purposes,” including “lectures and
classes on a broad range of subjects by both members and
non-members” can become a designated public forum.71
Furthermore, many public buildings and enclosed areas
are nonpublic forums entirely, including airports,72 welfare
offices,73 military bases,74 the government workplace,75 and
especially, a courthouse.76 In contrast, at least one court
has held that public malls can be, in some circumstances,
traditional public forums.77
content restriction could not stand.81 Individuals, however,
are not given unlimited free reign to say whatever they
please, and for however long, when public meetings and
debates are opened for discussion.82 For instance, the Eleventh Circuit Court of Appeals held that a city commission
could silence and remove an individual from a meeting
because the presiding officer believed the individual was
disruptive.83 Moreover, the Supreme Court, in Arkansas
Educational Television Commission v. Forbes, held that a
public broadcaster could exclude a candidate for public
office from participating in televised debates84 because the
debate was a nonpublic forum.85
Advertisements
on Government Property
Public Debates
Courts typically consider public meetings and debates,
where discussion is open to the public generally, designated
public forums.78 Thus, content based restrictions on free
speech in such public meetings and debates are subject to
strict scrutiny.79 For example, the U.S. Supreme Court invalidated a Wisconsin Employment Relations Commission
order that prohibited non-union teachers from speaking at
public school board meetings about on-going contract negotiation issues.80 Because the school board meetings were
open to the public, the Court held that such an explicit
70 Hopper v. City of Paseo, 241 F.3d 1067 (9th Cir. 2001).
71 Church of the Rock v. City of Albuquerque, 84 F.3d 1273,
1278 (10th Cir. 1996).
72 Int. Society for Krishna Consciousness, Inc. v. Lee, 505 U.S.
672, 680 (1992). But see Board of Airport Com’rs of City
of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987)
(ordinance banning “All First Amendment” activity in Los
Angeles Airport was unconstitutionally overbroad), and
Multimedia Pub. Co. of South Carolina, Inc. v. GreenvilleSpartanburg Airport Dist., 991 F.2d 154 (4th Cir. 1993) (ban
on newsracks found unconstitutional).
73 Make the Road by Walking, Inc. v. Turner, 378 F.3d 133 (2nd
Cir. 2004).
74 Greer v. Spock, 424 U.S. 828, at 838 n. 10 (1976).
75 Cornelius v. NAACP Legal Defense Fund, 473 U.S. 788 (1985).
76 Berner v. Delahanty, 129 F.3d 20 ( United States v. Bader, 698
F.2d 553, 556 (1st Cir.1983)); Claudio v. United States, 836
F. Supp. 1219, 1224-25 (E.D.N.C.1993), aff ’d, 28 F.3d 1208
(4th Cir.1994); see also Helms v. Zubaty, 495 F.3d 252, 256 (6th
Cir. 2007) (reception area of judge’s office is nonpublic forum,
even with an open-door policy).
77 American Civil Liberties Union of Nevada v. City of Las Vegas, 333 F.3d 1092 (9th Cir. 2003).
78 See City of Madison Joint School Dist. v. Wisconsin Employment Relations Comm’n, 429 U.S. 167 (1976); Jones v. Heyman, 888 F.2d 1328 (11th Cir. 1989);
79 Jones, 888 F.2d at 1331.
80 City of Madison, 429 U.S. at 167.
With the increasing variety of government-owned
property – from public transportation, to athletic fields,
to internet websites – a similar question has continued to
pop up: when a governmental entity opens its property
to advertisement, what limits may the government place
on the advertisements it accepts? The federal courts’
treatment of advertisements on public transportation is a
good framework in which to explore this area of the law.
Localities frequently open these vehicles for advertising,
so the issue courts have wrestled with is whether localities
can regulate what advertisements they accept and which
they do not. For instance, in Lehman v. City of Shaker
Heights, the Supreme Court ruled that public transit
authorities may allow a significant amount of speech but
yet still discriminate based on content.86 The key was
that the city, as the operator of the public transportation
system, was acting in a proprietary capacity.87 However,
localities do not have unbridled discretion – the distinctions must still be reasonable.88 For instance, the First
Circuit invalidated an ordinance when the Massachusetts
Bay Transportation Authority denied an AIDS group
advertising space for a sexually explicit advertisement.89
Notably, the Authority had approved movie advertisers
81 Id.
82 Wright v. Anthony, 733 F.2d 575 (8th Cir. 1984).
83 Jones, 888 F.2d at 1328; see also Steinberg v. Chesterfield County
Planning Com’n, 527 F.3d 377, 390 (4th Cir. 2008) (holding that the exclusion of an individual from a public meeting
because the individual was being disruptive did not violate the
First Amendment).
84 523 U.S. 666, 666 (1998).
85 Id.
86 418 U.S. 298 (1974).
87 Id.; see also AIDS Action Committee of Mass., Inc. v. Mass. Bay
Transp. Authority, 42 F.3d 1, 9-10 (1st Cir. 1994).
88 AIDS Action Committee, 42 F.3d at 1.
89 Id.
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with sexually explicit movies.90 Also, the D.C. Circuit held
that the Washington D.C. Metropolitan Transit Authority’s
refusal to display an anti-Reagan ad, when it had accepted
other political advertising, was an unconstitutional prior
restraint.91 The Transit Authority’s acceptance of other
political ads transformed the subway stations into public
forums.92 In contrast, the Ninth Circuit held that the treatment of governmental advertisement space as a nonpublic
forum, where that space is limited to commercial speech,
extends to advertisements on the exterior of public transportation, not merely the interior.93
One case in particular highlights a key dichotomy in
the area of free speech and advertisements, namely, the
distinction between government speech and other kinds of
speech. The case, Johanns v. Livestock Marketing Association, dealt with a government program that required mandatory contributions from beef producers.94 The federal
government used the contributions to fund a beef promotion and research board.95 The plaintiffs, two associations
and several individuals had paid the contribution and
sued the Secretary of Agriculture because they disagreed
with the board’s message.96 The plaintiffs claimed that the
board’s actions constituted “compelled” speech and thus
violated the First Amendment.97 The Court held, however, that even though a non-governmental entity, the beef
board, was tasked with researching issues and developing
messages, the real speech was made by the federal government, which controlled the message by statute and regulation.98 And because the Court found it was government
speech, the board was not subject to First Amendment
scrutiny.99 Thus, if the speech or advertisement at issue
is government speech, then the first amendment will not
apply. In such cases, there must be some threshold level of
editorial control by the government over the message. In
a similar vein, courts have consistently upheld a government’s right to promote a ballot measure.100
90 Id.
91 Lebron v. Washington Metropolitan Area Transit Authority,
749 F.2d 893, 896 (D.C. Cir. 1984).
92 Id.
93 Children of the Rosary v. City of Phoenix, 154 F.3d 972 (9th
Cir. 1998).
94 544 U.S. 550 (2005).
95 Id.
96 Id. at 555-56.
97 Id.
98 Id. at 560-61.
99 Id. at 561-62.
100Kidwell v. City of Union, 462 F.3d 620, 626 (6th Cir. 2006)
(city could promote ballot measure); Cook v. Baca, 95 F. Supp.
2d 1215, 1227-29 (D.N.M. 2000) (same); Ala. Libertarian Party
v. City of Birmingham, 694 F. Supp. 814, 818-21 (N.D. Ala.
1988) (same).
When the government is not the speaker, or advertiser, courts have frequently found the relevant forum to
be nonpublic or limited public. For instance, in Bryant
v. Gates the D.C. Circuit held that the military’s Civilian
Enterprise Newspaper’s (CEN’s) advertising section was
a nonpublic forum.101 The plaintiff sued the Secretary
of Defense because the editors of the CEN refused to
publish overtly political and highly controversial advertisements.102 The plaintiffs argued that the military failed to
apply the policy of not publishing political material in a
consistent manner because several pseudo political advertisements were accepted.103 The court held, however,
that the accepted advertisements were materially different
than the advertisements the government rejected.104 The
government did not open up the advertising section for
“communication or assembly of the public,” and applied
its policy in a consistent manner.105 Similarly, in Diloreto
v. Downey Unified School District Board of Education,
the Ninth Circuit Court of Appeals held that the outfield
fence of a high school baseball field was a limited public forum for the purposes of advertising.106 The school
district solicited local businesses to advertise on the outfield
fence of the baseball field.107 In response to this solicitation, the plaintiff submitted a lengthy ad containing the
Ten Commandments, which the high school principal
refused to post.108 In finding that the fence was a limited
public forum, the Ninth Circuit held that the principal’s
decision and the accompanying policy not to post advertisements that were “disruptive to the educational purpose
of the school” were reasonable.109
In the area of advertising, the distinction between
government speech, nonpublic forums and limited public
forums has carried over into government websites. As a
starting point, federal regulations prohibit localities with
.gov domain names from posting advertisements.110 That
regulation, however, only covers .gov domain names, any
other domain is governed by First Amendment regulation.
The first case to directly consider restrictions on advertisements on government websites was Putnam Pit, Inc.
v. City of Cookeville.111 In Putnam Pit, the Sixth Circuit
101 532 F.3d 888, 898 (D.C. Cir. 2008).
102 Id. at 892.
103 Id. at 894.
104 Id. at 896-98.
105 Id.
106 196 F.3d 958 (9th Cir. 1999).
107 Id. at 962-63.
108 Id.
109 Id. at 967-69.
110Guidance on Advertising, WebContent.gov, http://www.usa.
gov/webcontent/getting_started/naming/advertising.shtml.
111 221 F.3d 834 (6th Cir. 2000).
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Free Speech Considerations for Local Governments
VML Legal Resource
held that Cookeville’s website was a nonpublic forum.112
The plaintiff, a small, free, tabloid newspaper that reported on public corruption, requested that the city place a link
from the city’s webpage to The Putnam Pit’s webpage.113
The city had, in the past, placed links on its webpage for
internet service providers, an attorney, and a local technical
college, but the city’s computer operations manager denied
Putnam Pit’s request and expressed a policy of limiting
access to non-profit organizations, which then transformed
into a policy to only link to websites that would promote
the City of Cookeville.114 The court found that unlike with
a designated public forum, the City of Cookeville never
opened the city’s website to public discourse.115 Thus, the
website was a nonpublic forum and the city’s policy of
limiting access to either non-profit organizations or those
promoting Cookeville, was reasonable.116
question arises about when a government’s website that
would otherwise be a nonpublic or limited public forum
becomes a designated public forum. What if a town
government posts articles on its website about town issues
and citizens are allowed to comment? Does that create a
designated public forum for advertising purposes and thus
restrict what advertisements the town may reject? What
if it they are not comments but actual chat rooms? In
such a case, it is far more likely there is a designated public
forum. These are questions that courts have not addressed
but likely will in the future.
In Page v. Lexington County School District One, the
Fourth Circuit held that links on a school district website,
which the district selected, constituted government speech.
Important to the decision was that the district retained
“sole control over [the] message.”117 Unlike Putnam Pit,
however, the Fourth Circuit based its decision on the
government speech doctrine, finding that the district was
within its rights, and not subject to First Amendment scrutiny, to refuse access to an individual who wanted to voice
opposition to a bill that the school district supported.118
Finally, in an unreported case from federal district court
in New Hampshire, the court upheld a school district’s
refusal to post a link to a non-school sponsored event.119
The court found the website was a non-public forum and
the restriction was reasonable.120
Several key issues that are undecided in public forum
case-law relate to government-controlled websites. For
instance, the question whether a governmental entity may
sell advertisements on its website – like it might on a bus
or a subway – has not yet arisen. In looking at the public
transportation cases and the few website cases out there, it
seems likely that such advertisements would be fine. But
what parameters may governments put on acceptance or
rejection? A safe guess would be a policy of not accepting
political or religious advertisements could be upheld. The
112Id. at 844.
113Id. at 838-42.
114Id. at 841.
115Id. at 843.
116Id. at 843-44.
117531 F.3d 275, 285 (4th Cir. 2008).
118Id. at 278-85.
119Sutliffe v. Town of Epping, Civil No. 06-cv-474-JL. (D.N.H.
Nov. 13, 2008)
120 Id.
If you would like to suggest topics for future publications,
contact Mark Flynn at P.O. Box 12164, Richmond, VA
23241, 804/523-8525, [email protected]
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